Madras High Court
Karthi @ Karthikeyan vs State Rep. By on 29 November, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.A.No.896 of
2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.11.2022
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
CRL.A.No.896 of 2022
1.Karthi @ Karthikeyan
2.Balaji .. Appellants
.Vs.
State rep. by
Inspector of Police,
All Women Police Station,
Arani, Thiruvannamalai District.
Crime No.11 of 2014. .. Respondent
Criminal Appeal filed under Section 374(2) of Code of Criminal
Procedure to allow the appeal by setting aside the conviction and sentence
imposed against the appellants/accused No.2 and 3 in judgment dated
18.07.2022 in Spl.S.C.No.2 of 2019 on the file of learned Sessions Judge,
Special Court for POCSO Act cases, Thiruvannamalai, Thiruvannamalai
District, wherein found the appellants guilt for the offence under Section
366(A) IPC, and sentencing to undergo 10 years R.I. with a fine of
Rs.1,000/- I/d 1 year SI each. For the offences under Section 376(D) of
IPC and Section 6 of POCSO Act, 2012 sentenced to undergo 20 years of
RI with a fine of Rs.1,000/- in default 1 year SI each.
For Appellants : Mr.S.Suresh, for 1st appellant.
Mr.C.Venkatesan, Legal-Aid counsel,
for 1st and 2nd appellants.
For Respondent : Mr.S.Sugendran
Additional Public Prosecutor
https://www.mhc.tn.gov.in/judis
Page No.1/22
Crl.A.No.896 of
2022
JUDGMENT
This Criminal Appeal has been filed against the judgment of conviction and sentences imposed against the appellants/accused Nos.2 and 3 in judgment dated 18.07.2022 in Spl.S.C.No.2 of 2019 on the file of learned Sessions Judge, Special Court for POCSO Act cases, Thiruvannamalai, Thiruvannamalai District.
2. The case of the prosecution is that in the year 2013, the victim girl, who was aged below 12 years, was studying III Standard at Melnagaram Primary School, Thiruvannamalai District. On 28.10.2013, during the interval hour, when the victim girl came out from the School, the accused persons gave biscuits and took her to the Chicken shop of the third accused, wherein all the accused had committed penetrative sexual assault on the victim girl without her consent. On the same day, on seeing the victim girl crying, P.W.2/mother of the victim questioned her and later examined her private part and found, it was swollen and injuries and also bleeding. Thereafter, the victim girl narrated the entire alleged incident committed by the accused to her mother, who in turn, informed the said incident to her husband. Then, they took the victim girl to the Baagayam Hospital and gave treatment and counselling to her. On 06.06.2014, at https://www.mhc.tn.gov.in/judis Page No.2/22 Crl.A.No.896 of 2022 about 12 noon, parents of the victim girl lodged a complaint before the respondent police.
3. On the complaint given by the de-facto complainant/mother of the victim, the respondent/Police registered a case in Crime No.11 of 2014 under Section 3 and 4 of 'The Protection of Children from Sexual Offences Act, 2012' [hereinafter referred to as 'POCSO Act' for the sake of convenience] and Section 376 IPC. Thereafter, the respondent/Police laid a charge sheet before the learned Judicial Magistrate, Arani for the offences under Sections 366A, 376D of IPC and Sections 6 and 10 of the POCSO Act and Section 354 IPC and Section 3(b) of the Tamil Nadu Prohibition of Harassment of Woman (Amendment) Act, 2002 and the same was taken on file in P.R.C.No.34 of 2014 and committed the case to the learned Principal District and Sessions Judge, Tiruvannamalai, since the offences are exclusively triable by the Court of Sessions. The learned Principal District and Sessions Judge, Tiruvannamalai taken the case on file in Spl.S.C.No.119 of 2014 and made over to the Fast Track Mahila Court, Tiruvannamalai, since the offence is against a girl child. When questioned, the accused persons denied the allegations. However, based https://www.mhc.tn.gov.in/judis Page No.3/22 Crl.A.No.896 of 2022 on the materials, the trial Court framed the aforementioned charges against the appellant.
4. In order to prove its case before the trial Court, on the side of the prosecution, as many as 14 witnesses were examined as P.W.1 to P.W.14 and 14 documents were marked as Exs.P1 to P14 and no material object was exhibited.
5. After examining the prosecution witnesses, the incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the accused and they were questioned under Section 313 Cr.P.C., wherein they denied all the incriminating circumstances as false and pleaded not guilty. On the side of the defence, two witnesses were examined as D.W.1 and D.W.2 and no documentary evidence was produced.
6. The Court below, after hearing the arguments advanced on either side and also considering the materials available on record, found that the appellants herein/A2 and A3 are guilty for the offences under Sections 366A, 376D IPC and Section 6 of the POCSO Act and they were convicted and sentenced as follows :
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(i) for the conviction under Section 366A IPC, the accused 2 and 3 were convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for a period of one year;
(ii) for the conviction under Section 376D IPC and Section 6 of POCSO Act the accused 2 and 3 were convicted and sentenced to undergo rigorous imprisonment for a period of twenty years and to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for a period of one year;
(iii) The Court below found that A2 and A3 are not guilty for the offences under Section 10 of POCSO Act and Section 354 IPC and Section 3(b) of Tamil Nadu Prohibition of Harassment of Woman (Amendment) Act, 2002 and acquitted them for the said charges.
(iv) the trial Court ordered that the sentences imposed on the appellants herein/A2 and A3 to be run concurrently and also ordered that the period of detention already undergone by the appellants were directed to be set-off under Section 428 Cr.P.C.
(v) Since the first accused died, he was abated from the charged offences.
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(vi) besides that, the trial Court directed the Government of Tamil Nadu to give a compensation of Rs.3,00,000/- to the victim girl from the Tamil Nadu Child Victim Compensation Fund under the POSCO Act, 2012.
7. Challenging the said conviction and sentences, the appellants are before this Court.
8.1 The learned counsel appearing for the appellants submitted that as per the case of the prosecution, on 28.10.2013, when the victim came out from the school during the interval period for attending natures call the occurrence is said to have taken place. On the same day at about 5.00 p.m the victim girl narrated the said incident to her mother and also named the accused persons. However, the written complaint was lodged before the respondent/Police only on 06.06.2014. There was a delay of eight months in filing the complaint and the same has not been properly explained by the prosecution, which itself creates a doubt on the case of the prosecution. Further, there was a contradiction in the place of occurrence, P.W.1 in her deposition has stated that the accused took her to nearby thorny rock and then they sexually assaulted her. But, the https://www.mhc.tn.gov.in/judis Page No.6/22 Crl.A.No.896 of 2022 prosecution's case is that the occurrence took place in the chicken shop of A3 and therefore, the place of occurrence itself is doubtful.
8.2 The learned counsel further submitted that the prosecution's case is that on the date of occurrence, the victim came out from the School during the interval period for attending natures call. However, during examination, P.W.7/Head Master of the School, where the victim was studied, and P.W.14/Investigating Officer have admitted that there was a gate in the School and during the School hours, the students were not allowed to come out side and there was no necessity to come out side of the School to attend the natures call when there is a rest room in the School premises. He further submitted that whether the victim attended the School on the date of occurrence and during School hours she went out of the School or not have not been proved by the prosecution. Further, none of the teachers, nearby shop owners or residents were examined by the prosecution.
8.3 The learned counsel further submitted that P.W.1 in her deposition has stated that on several occasions the accused persons took her to remote place and had committed the said offence, but she did not specifically mention the date, time and place of occurrence. Further, https://www.mhc.tn.gov.in/judis Page No.7/22 Crl.A.No.896 of 2022 P.W.1 in her deposition has stated that the accused persons closed her eyes by using a cloth and took her to the place of occurrence and hence, she did not identify the place and the accused persons. P.W.2/mother of the victim has stated that identification parade was conducted, but the Investigating Officer has stated that no identification parade was conducted, though the victim named the accused persons. However, the victim girl has not identified the accused persons, at any point of time. The trial Court suo motu called the appellants and only at the instance of the Court below, the victim girl identified the appellants as accused. He further submitted that P.W.13/Doctor has stated that on 30.10.2013 she conducted medical examination on the victim, but the medical report/Ex.P10 was issued only on 11.6.2014 and the said delay has not been properly explained by the prosecution. Further, there was also a delay in filing the complaint and sending the First Information Report to the Court. The explanation offered by the prosecution for delay in lodging the complaint is that after identification of the accused persons by P.W.1, P.W.2/mother of the victim lodged the complaint/Ex.P11 on 06.06.2014. However, P.W.2 in her chief examination has deposed that on 28.10.2013 at 5.00 p.m., P.W.1 named the accused persons, further more, https://www.mhc.tn.gov.in/judis Page No.8/22 Crl.A.No.896 of 2022 P.W.3/father of the victim has stated that on 29.10.2013 his wife informed the sexual assault and names of the accused persons. P.W.4/grand mother of the victim has also categorically stated that after the incident, on enquiry, P.W.1 mentioned the names of all the accused, who were residing opposite to their house. P.W.14/Investigating Officer also stated that since the victim girl named the accused persons, she did not conduct the identification parade. As per the prosecution witnesses, it is clear that the accused persons were already known to the complainant even on the date of occurrence itself, however, the complaint was lodged against them only after eight months. All these aspects clearly show that the explanation offered by the prosecution for the delay is only an afterthought, which is false in nature and a false case has been foisted against the appellants.
8.4 The learned counsel for the appellant further submitted that the mother of the victim was having illegal intimacy with P.W.7/Head Master of the School, where the victim was studied and when the same was questioned by A3 and others, in order to take wreak vengeance, at the instigation of P.W.7, the mother of the victim foisted a false case against the accused persons by using the victim girl as a tool. The https://www.mhc.tn.gov.in/judis Page No.9/22 Crl.A.No.896 of 2022 prosecution has not proved its case that the accused persons had committed penetrative sexual assault on the victim and that presumption under Section 29 of the POCSO Act would not attract. The trial Court failed to appreciate the entire evidence and erroneously convicted and sentenced the appellants, which warrants interference of this Court.
9. The learned Additional Public Prosecutor appearing for the respondents submitted that the victim girl was aged about 8 years at the time of occurrence and she was studying III standard. On the date of occurrence, when the victim girl came out from the School during the interval period for attending natures call, the accused persons offered biscuits and took her to A3's chicken shop and had committed sexual assault. On enquiry, the mother of the victim girl came to know the said incident and then, she preferred the complaint against the accused persons. The appellants and the victim are known persons and both are living in the same village. Further, the victim was subjected to medical examination and on clinical examination, the Doctor found that the victim was subjected to sexual assault and her hymen was not intact and also found that there was tear injuries on her private part. The victim girl https://www.mhc.tn.gov.in/judis Page No.10/22 Crl.A.No.896 of 2022 also produced before the learned Judicial Magistrate for recording her statement under Section 164 Cr.P.C. and the same was marked as Ex.P8. The evidence of P.W.1 and her 164 Cr.P.C statement clearly show that the appellants have committed penetrative sexual assault on the victim. Though it is stated that there is no eye witness to the alleged occurrence, however, from the evidence of P.W.1/victim girl, P.W.7/Head Master and P.W.13/Doctor, Ex.P8/164 Cr.P.C statement, and Ex.P3/Age proof certificate of the victim girl, the prosecution has proved that at the time of occurrence the victim girl was above 8 years and below 12 years and she was subjected to penetrative sexual assault by the appellants. Therefore, the offence committed by the appellants termed into aggravated penetrative sexual assault. The trial Court has rightly framed charges and based on the oral and documentary evidence the trial Court found guilt of the appellants for the charged offences and rightly convicted and sentenced the appellants and there is no merit in the appeal and the same is liable to be dismissed.
10. Heard the learned counsel on either side and perused the materials available on record.
11. This Court, being an Appellate Court, is a final Court of fact https://www.mhc.tn.gov.in/judis Page No.11/22 Crl.A.No.896 of 2022 finding, which has to necessarily re-appreciate the entire evidence and give an independent finding. Accordingly, this Court has re-appreciated the entire oral and documentary evidence produced before this Court.
12. Admittedly, based on the complaint given by the mother of the victim/de-facto complainant, a case has been registered against the appellants herein and one another. After trial, the trial Court convicted and sentenced the appellants/A2 and A3 for the charged offences. Since the first accused died, he was abated from the charged offences.
13. In order to substantiate the charges against the appellants, on the side of the prosecution totally 14 witnesses were examined, out of which, the victim girl was examined as P.W.1; the mother of the victim was examined as P.W.2; the father of the victim girl was examined as P.W.3; the grand mother of the victim girl was examined as P.W.4; the paternal uncle of the victim girl was examined as P.W.5; the Head Master of the School where the victim studied was examined as P.W.7; the Doctors, who examined the victim were examined as P.W.8 and P.W.13; the Investigating Officer was examined as P.W.14.
14. After registering the complaint, the victim was produced before https://www.mhc.tn.gov.in/judis Page No.12/22 Crl.A.No.896 of 2022 the learned Judicial Magistrate and her statement was recorded under Section 164 Cr.P.C, which was marked as Ex.P8. On a combined reading of the evidence of the victim girl and her previous statement, it is seen that she has clearly narrated the offences committed by the appellants. As far as the identification of the appellants are concerned, the appellants and the victim are known to each other as the appellants are residing in the same village, more particularly they are residing opposite house of the victim. Hence, there is no dispute with regard to the identification of the accused persons.
15. During trial, when the victim girl was examined as P.W.1, she has stated that the rest room in the School campus is not in a good condition, and therefore, the students will not use the same and most of the students came out of the School to attend the natures call. Likewise, on the date of occurrence, during the interval, she came out from the school for attending the natures call. At that time, the three accused persons offered biscuits and took her to nearby thorny rock and then they sexually assaulted her and also threatened her not to reveal the same to anybody. The accused persons are known to the victim girl and when they offered biscuits, she tempted for the same and followed the appellants https://www.mhc.tn.gov.in/judis Page No.13/22 Crl.A.No.896 of 2022 and the appellants taking advantage of the poverty, exploited the innocence of the victim and had committed sexual assault on her on several occasions.
16. The main contention raised by the learned counsel for the appellants is that P.W.2/mother of the victim was having illegal intimacy with P.W.7/Head Master of the School, where the victim was studied. When the same was questioned by the appellants, in order to escape from that allegations, at the instigation of P.W.7, the de-facto complainant/P.W.2 foisted a false complaint against the appellants. However, P.W.2/mother of the victim in her deposition has stated that she was working as ''Aaya'' in C.M.C Medical College, Vellore and her husband was working as a daily coolie in SRS Mill at Sevvur and they have begotten three children. The victim girl was studying in a Government School, in which, midday meals will be provided to the students and there was no necessity to give lunch to the victim. As per the defence, P.W.2/mother of the victim go to the School of the victim to give lunch every day and at that time, the mother of the victim developed illegal intimacy with P.W.7/Head Master. However, since the mother of the victim was working as Aaya in CMC Medical College and Hospital, https://www.mhc.tn.gov.in/judis Page No.14/22 Crl.A.No.896 of 2022 Vellore, it is not possible for her to come out from the Hospital during working hours and stay at the School for four or five hours and having illegal intimacy with the Head Master. The poor mother, who is working as Aaya and admitted her daughter in the Government Middle School brought lunch every day to her daughter is unbelievable. To substantiate the said claim, the defence has not produced any documents to prove that they sent a complaint against the Head Master to the District Educational Officer or any other superiors for taking action for the said act. On the side of defence two witnesses were examined and both are interested witnesses and without proving the said allegation, they have simply taken the bold defence, which is highly improbable and the same is not acceptable.
17. In order to prove the age of the victim, the prosecution conducted radiology test on the victim girl to find out her age and the said report was marked as Ex.P3. As per Ex.P3 the age of the victim is above 8 years and below 12 years at the time of occurrence. Further, P.W.7/Head Master of the School, where the victim girl was studied, has also stated that the victim was studying III standard at the relevant point of time. Thus, it is proved that at the time of occurrence, the age of the https://www.mhc.tn.gov.in/judis Page No.15/22 Crl.A.No.896 of 2022 victim is eight years and the same was not disputed by the defence. Therefore, the victim girl is a child and she comes under the definition of 2(1)(d) of POCSO Act. Further, the victim was subjected to medical examination and the Doctors/P.W.8 and P.W.13 who have conducted medical examination on victim girl gave their evidence, which clearly show that the victim was subjected to penetrative sexual assault by three known persons and her hymen was not intact. P.W.8/Doctor who conducted medical examination of the victim girl made entries in the Accident Register/Ex.P4.
18. The learned counsel for the appellants strongly disputed Ex.P10/medical certificate, which was given after the delay of eight months i.e. dated 11.06.2014. From the alleged occurrence that had taken place on 28.10.2013. However, the Doctor/P.W.13 who conducted medical examination on the victim girl on 30.10.2013 has clearly stated that during the medical examination, the mother of victim girl has stated that the victim was subjected to sexual assault by three known persons on several occasions, due to which, she got insomnia problem and the Doctor observed the victim and gave treatment to her. Further, P.W.8/Doctor has clearly stated that on 07.06.2014 she conducted medical examination on https://www.mhc.tn.gov.in/judis Page No.16/22 Crl.A.No.896 of 2022 the victim, at that time, the victim girl has stated that before six months she was subjected to sexual assault by three known persons for more than ten occasions on several places and on clinical examination she found that the victim girl's hymen was not intact and she was aged about 8 years at the relevant point of time and the Doctor also deposed that she did not find any injuries on the private part of the victim, since the victim was produced before her, after six months from the date of occurrence. Therefore, from the evidence of victim girl and the evidence of the Doctors the prosecution has proved its case beyond all reasonable doubt.
19. The main contention raised by the learned counsel for the appellants is that there was an enormous delay in filing the complaint. The victim is a child and her family is very poor and they hesitate to give complaint against the appellants or otherwise they may not know how to proceed with the matter and thus the delay had occurred in filing the complaint. Therefore, mere delay in filing the complaint is not fatal to the case of the prosecution. However, from the evidence of P.W.2, P.W.3, P.W.4 and P.W.5 the prosecution has proved the said occurrence committed by the all the accused and the victim girl also named the accused persons, who are living in the same village and after deliberation, https://www.mhc.tn.gov.in/judis Page No.17/22 Crl.A.No.896 of 2022 P.W.2 mother of the victim registered a complaint against the accused persons. No doubt mere delay in filing complaint is not a sole ground to disbelieve the case of the victim or prosecution. In a case of this nature, the Court has to see whether the evidence of the victim inspires the confidence of the Court or there is any reason to disbelieve or discard the evidence of the victim.
20. On a combined reading of the evidence of the victim girl as PW.1 and her previous statement Ex.P8, would reveal that the evidence of the victim is cogent, consistent, natural and trustworthy and also the evidence of the victim child inspires the confidence of this Court. Mere non-examination of independent witnesses viz., the School teachers and neighbours to the A3's shop may not be a sole ground to discard the evidence of the victim. In a case like this, the Court cannot expect any eye witness or independent witness. These type of accused will always wait for a chance to take advantage of the loneliness of the children to commit this type of offence. In the case on hand, the appellants taking advantage of the needs of the victim, provided biscuits and took away her from the school premises and had committed penetrative sexual assault. P.W.2 to P.W.5 are close relatives to the victim, in cases of this nature, naturally https://www.mhc.tn.gov.in/judis Page No.18/22 Crl.A.No.896 of 2022 the relatives only come forward to speak about the known fact and they only support the victim, as they are not eye witnesses to the occurrence. The victim girl was subjected to penetrative sexual assault on several occasions, however, on the particular date i.e. on 28.10.2013 the victim girl informed the said incident to her mother and on enquiry she found injuries on the private part of the victim and thereafter, she informed the said incident to her husband and her relatives and after deliberation they preferred the complaint against the accused persons. As far as identification of the appellants is concerned, the appellants are residing opposite to the house of the victim and they are known persons to the victim and hence, the identification parade has not been conducted. The discrepancies and contradictions pointed out by the learned counsel for the appellants are not material contradictions, it is only minor contradictions and it will not affect the case of the prosecution. The evidence of the victim regarding sexual assault is enough for conviction and it does not require any corroborative evidence unless there are compelling reasons seeking for corroboration. The Court may testify the evidence of the witness, as to whether she was tutored by her parents or adult members for any reason. However, no parents will sacrifice the https://www.mhc.tn.gov.in/judis Page No.19/22 Crl.A.No.896 of 2022 future and reputation of a victim girl and go to that extent to file a false case against the appellants.
21. Under these circumstances, this Court being an Appellate Court, is a fact finding Court re-appreciated the entire evidence and come to the conclusion that the appellants have committed the said offences and the prosecution has established its case beyond all reasonable doubts. In the light of the above discussion, this Court does not find any merit in this appeal and the appeal is liable to be dismissed.
22. Accordingly, this Criminal Appeal is dismissed and the conviction and sentences passed in Spl.S.C.No.2 of 2019 by the learned Sessions Judge, Special Court for POCSO Act cases, Thiruvannamalai, Thiruvannamalai District is confirmed.
23. The Legal Aid counsel appointed by this Court is entitled to legal fees as per Rules.
29.11.2022 Index: Yes/No Speaking Order/Non-Speaking Order ms https://www.mhc.tn.gov.in/judis Page No.20/22 Crl.A.No.896 of 2022 To
1.The Sessions Judge, Special Court for POCSO Act cases, Thiruvannamalai, Thiruvannamalai District.
2.The Superintendent, Central Prison, Vellore.
3.The Inspector of Police, All Women Police Station, Arani, Thiruvannamalai District.
4.The Public Prosecutor, High Court, Madras.
5.The Deputy Registrar | with a direction to send back the (Criminal Section), | original records, if any, to the High Court, Madras. | trial Court https://www.mhc.tn.gov.in/judis Page No.21/22 Crl.A.No.896 of 2022 P.VELMURUGAN, J.
ms CRL.A.No.896 of 2022 29.11.2022 https://www.mhc.tn.gov.in/judis Page No.22/22